Disclosures in May and June 2021 have revealed that the Trump administration issued subpoenas for the phone records of reporters at the Washington Post, CNN, and the New York Times. The email records for CNN reporter Barbara Starr were also obtained.
Various media have described these actions as “secretly seizing” or “covertly seizing” the records.
The records, of course, were not “seized.” They are still in the possession of the service providers. The Department of Justice obtained copies of the records, presumably in digital format. Under long-established legal precedent, DOJ can subpoena what is now routinely referred to as the “metadata” of such records, which indicates the subscriber information of the parties the communications were with, and when the interactions occurred.
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The reason for obtaining the records was to identify responsible government employees or others who were in contact with the reporters, and may have committed the felony of leaking classified information. That is a legitimate, proper, and desirable function of the DOJ and FBI, one that is likely to involve reporters if their media outlets publish the classified information after receiving it. If the FBI identifies likely candidates from the reporter’s records, the protections provided by the warrant process then kick in for the persons of interest or suspects.
This is not a “FISA court” process; i.e., secret surveillance for national security or counterintelligence, which is intended to develop targets and collect intelligence. It’s a use of the criminal courts to investigate observed, specific violations of U.S. statute. (Where there’s an argument that the law is too loose in this regard, as Leslie McAdoo Gordon implies at The Federalist, one aspect of it appears to be that prosecutors don’t have to name each specific instance of a violation they’re investigating, in their certifications to the court. But it’s understood that prosecutors are having actual violations investigated — a criminal procedure — as opposed to the intelligence development surveillance that goes with CI, and is not inherently about pursuing crimes.)
The evidence of violations is that classified information has appeared without authorization in media reporting, meaning someone with a clearance disclosed it.
CNN’s report on Barbara Starr’s case acknowledged that “Ultimately, journalists must be informed that their records were obtained, as Starr was by the letter on May 13. But the timeline is fluid, as the guidelines mandate the notice must occur only after there is no longer a threat to the investigation or national security, or no longer than 90 days from the time the government has received the information sought from the subpoena.”
As CNN observed, the subpoena for Starr’s records covered June and July 2017, which fell within a period for which former Attorney General Jeff Sessions had launched 27 leak investigations by November of that year.
Consistent with the description of “metadata” above, CNN relates that “The Justice Department said in the letter to Starr that it had obtained phone ‘toll records,’ which would include calls made to and from the targeted phones and the length of the calls. The letter said that the Justice Department had received ‘non-content information’ from Starr’s email accounts, meaning the recipient, sender, date and time would be included, but not the content of the emails.”
Said CNN: “A Justice Department official confirmed that Starr was never the target of any investigation.”
Reporters have no expectation of source protection in such circumstances. Obtaining the reporters’ own records is governed by due process in court and is not a violation of their rights. What the media can get away with when they have obtained classified information is something of a gray area, argued endlessly by interested specialists. But there is no “right” to be the responsible leaker of classified information (i.e., the party with the clearance and access, usually a government employee or contractor) and go unidentified.
DOJ is likely to obtain the records in “secret” because there is a legitimate need to not alert the leakers to the fact that they are being sought.
The rather tiresome media gambit of depicting the pursuit of leakers as repression of the media will probably continue if there are more instances to disclose of the Trump DOJ trying to identify government leakers. As the Daily Caller News Foundation notes, the Obama administration also subpoenaed reporters’ communications information. To the extent this was done to identify leakers of classified information, it was also legitimate.
